Action brought on 12 June 2012 - Deutsche Bahn and Others v Commission

(Case T-267/12)

Language of the case: English

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), Schenker AG (Essen, Germany), Schenker China Ltd (Shanghai, China), Schenker International (H.K.) Ltd (Hong Kong, China) (represented by: F. Montag and B. Kacholdt, lawyers, D. Colgan and T. Morgan, Solicitors)

Defendant: European Commission

Form of order sought

Annul Articles 1(2)(g), 1(3)(a), 1(3)(b) and 1(4)(h) of European Commission's decision of 28 March 2012 relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462 - Freight Forwarding);

Annul in total or, in the alternative, reduce fines set out in Articles 2(2)(g), 2(3)(a), 2(3)(b) and 2(4)(h) of the contested decision; and

Order the defendant to pay the costs of the present proceedings.

Pleas in law and main arguments

In support of their action, the applicants rely on six pleas in law.

First plea in law, alleging

that the Commission infringed the applicants' rights of defence, principles of a fair trial and sound administration by not terminating its investigation upon receipt of notice that evidence submitted by legal representatives on behalf of a certain company was tainted by a series of breaches of law;

Second plea in law, alleging

that the Commission exceeded its competence by adopting the contested decision although it was barred from doing so under Regulation No 141/1962²

Third plea in law, alleging

that the Commission breached Articles 101(1) and 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Regulation No 1/2003 and the principles of personal liability and sound administration in holding Schenker China Ltd liable for the conduct of BAX Global (China) Co. Ltd and by fining solely Schenker China Ltd for that conduct although BAX Global (China) Co. Ltd had been a subsidiary belonging to another undertaking headed by a certain company during most of the period of the conduct defined in Article 1(3)(a) of the contested decision;

Fourth plea in law, alleging

that the Commission breached Articles 23 and 27 of Regulation No 1/2003, the applicants' rights of defence, the 2006 Fining Guidelines⁴, the principle that the punishment must fit the offence, as well as the principles of sound administration, nulla poena sine culpa and proportionality and it committed a manifest error of assessment in determining the amount of the fines on the basis of turnover exceeding the maximum theoretical amount that could have been generated by the conduct defined in Articles 1(2)(g), 1(3)(a), 1(3)(b) and 1(4)(h) of the contested decision;

Fifth plea in law, alleging

that the Commission breached Article 23 of Regulation No 1/2003, the Leniency Notice, as well as the principle of equal treatment and committed a manifest error of assessment in determining the applicants' fine reduction rates;

Sixth plea in law, alleging

that the Commission breached Article 23 of Regulation No 1/2003, the principle of equal treatment and committed a manifest error of assessment by refusing to initiate settlement talks under the Settlement Notice.

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¹ - Council Regulation No 141 of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291)

² - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2)

³ - Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 11)

⁴ - Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Articles 7 and 23 of Regulation No 1/2003 in cartel cases (OJ 2008 C 167, p. 1)